Early termination by tenant
The current section 100(1)(c) is a constant source of confusion and needs clarification. The section protects tenants, on the assumption that all landlords are devious.
Issues arise when a landlord’s circumstances change after a lease has started and the landlord needs to sell the property. The section has the effect of allowing tenants to terminate the lease where the landlord has exchanged the contract for sale, subject to the tenancy. This can cause the landlord to be in breach of the contract, losing the purchase and possibly having to pay damages to the prospective purchaser.
Recommendation: In the interest of fairness to both the landlord and the tenant, the section needs to be redrafted.
Termination by tenant for breach
In relation to termination by a tenant for breach by the landlord, it is essential to consider the nature of the breach. Is it persistent, significant or serious?
Recommendation: In order to create the scope for the parties to resolve any issues, section 98(1) needs to be amended so that termination is only permitted if the landlord’s breach related to an essential or material term of the tenancy agreement.
#8 Email as written notice
It’s time for the Residential Tenancies Act to keep pace with contemporary technology. At a time when Australia Post has brought in a three-tier system for mail service (making cheaper letters two days slower than premium ones) and facsimile continues to lose ground, the RTA needs to recognise email as a means of communication. Of note is the fact that NCAT provides service of notice of a hearing via email.
Tenants and landlords frequently nominate email as their preferred method of communication, so there seems to be little reason why email should not be a legislated method of service for landlords (and therefore agents) and tenants.
Recommendation: Email should be accepted as a method of giving notice. The addresses of tenants and agents (on behalf of landlords) should be stated on the tenancy agreement and the tenant is obliged to notify any change to their email address within 14 days of the change occurring.